In Unlawfully Present Aliens, Higher Education, In-State Tuition, and Financial Aid: Legal Analysis, Kate M. Manuel of the Congressional Research Servicediscusses how the existence of a sizable population of “DREAMers” in the United States has prompted questions about unlawfully present aliens’ eligibility for admission to public institutions of higher education, in-state tuition, and financial aid. The term DREAMer is widely used to describe aliens who were brought to the United States as children and raised here but lack legal immigration status. As children, DREAMers are entitled to public elementary and secondary education as a result of the Supreme Court’s 1982 decision in Plyler v. Doe. There, the Court struck down a Texas statute that prohibited the use of state funds to provide elementary and secondary education to children who were not “legally admitted” to the United States because the state distinguished between these children and other children without a “substantial” goal, in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

Once DREAMers complete high school, however, they may have less access to public higher education. Plyler’s holding was limited to elementary and secondary education, and the Court’s focus on the young age of those whom Texas denied a “basic education” has generally been taken to mean that measures denying unlawfully present aliens access to higher education may be subject to less scrutiny than the Texas statute was. Thus, several states have adopted laws or practices barring the enrollment of unlawfully present aliens at public institutions of higher education. In addition, Congress has enacted two statutes that restrict unlawfully present aliens’ eligibility for “public benefits,” a term which has generally been construed to encompass in-state tuition and financial aid. The first of these statutes, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA, P.L. 104-193) bars the provision of “state and local public benefits” to unlawfully present aliens unless the state enacts legislation that “affirmatively provides” for their eligibility. The second, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA, P.L. 104-208) bars states from providing “postsecondary education benefits” to unlawfully present aliens based on their residence in the state unless all U.S. citizens or nationals are eligible for such benefits, regardless of their state of residence.

State measures that variously deny or grant access to public higher education, in-state tuition, or financial aid have been challenged on the grounds that they violate the Equal Protection Clause, like the Texas measure at issue in Plyler. They have also been alleged to violate the Supremacy Clause of the U.S. Constitution, which establishes that federal law is “the supreme Law of the Land” and may preempt any incompatible provisions of state law. Based on the case law to date, it would appear that states do not, as a general matter, violate the Equal Protection or Supremacy Clauses by excluding unlawfully present aliens from public institutions of higher education. On the other hand, access to public higher education has generally not been construed as a public benefit for purposes of PRWORA, such that it may only be provided to unlawfully present aliens if a state enacts legislation that affirmatively provides for their eligibility. In-state tuition and financial aid have generally been seen as public benefits for purposes of PRWORA. However, courts have rejected the view that state statutes providing in-state tuition to unlawfully present aliens are preempted unless they expressly refer to PRWORA, or to unlawfully present aliens being eligible. Courts have also found that IIRIRA does not bar states from providing in-state tuition to unlawfully present aliens who complete a certain number of years of high school in the state and satisfy other criteria. In one case, the court reached this conclusion because it construed IIRIRA as barring only the provision of in-state tuition based on residence in the state, not based on other factors. In another case, the court found that IIRIRA did not create a private right of action such that individuals may sue to enforce alleged violations.